Com. v. Frodyma

• Decision Date: 03 June 1982
• Citation: 386 Mass. 434,436 N.E.2d 925
• Parties: COMMONWEALTH v. Edward M. FRODYMA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 925

436 N.E.2d 925

386 Mass. 434

COMMONWEALTH v. Edward M. FRODYMA.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Feb. 4, 1982.

Decided June 3, 1982.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Samuel A. Marsella, Springfield, for defendant.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

LIACOS, Justice.

On April 1, 1981, a judge of the Superior Court granted the defendant's pretrial motion to suppress evidence. ¹ The evidence was seized during a search of a pharmacy. A single justice of this court granted leave to the Commonwealth to prosecute an interlocutory appeal and transmitted the matter to the Appeals Court. G.L. c. 278, § 28E. Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979). We transferred the appeal here on our own motion. We affirm the order of the trial judge.

The facts, taken from the judge's findings and rulings, are as follows: The defendant was a registered pharmacist and operated a pharmacy in the town of Hatfield. On March 5, 1980, shortly after the start of the business day, Joseph LaBelle, an agent of the Board of Registration in Pharmacy, came on the premises to conduct a routine inspection. See G.L. c. 13, §§ 22 & 25. At that time, the pharmacy was in the sole control of a clerk, who was not a registered pharmacist. ² LaBelle asked the clerk to call the defendant, who arrived shortly thereafter. At LaBelle's request, the defendant produced copies of eleven order forms used to purchase controlled substances and a prescription file recording their sale. G.L. c. 94C, § 15. After comparing these forms with an inventory of controlled substances on hand, LaBelle concluded that the defendant had not accounted for substantial amounts of controlled substances. The absence of these substances was not explained by any theft or other loss, since the defendant denied any such event had occurred.

LaBelle proceeded shortly thereafter to the District Court in Hampshire County, where he applied for an administrative search warrant. The affidavit in support of the warrant was on a printed form purportedly drawn to comply with the provisions of G.L. c. 94C, § 30(f). ³ The warrant, which was also on a printed form, granted authorization to seize "any and all items which are used in any violation of any provision of M.G.L. c. 94C ... or which are themselves contraband, including any or all of the following: ... 3. Records, files, papers, or other documents which indicate violations of M.G.L. c. 94C and F.L. Title 21 or regulations promulgated thereunder." ⁴ Armed with the warrant, and accompanied by a State trooper, LaBelle returned to the pharmacy and seized the eleven order forms and the prescription file which he had previously inspected.

The judge ordered the suppression and return of the records seized because he concluded that the portion of the warrant authorizing the seizure of records was not sufficiently specific. The judge defined the problem aptly, noting that "(t)he difficulty stems ... from the Board's attempt to draft a form warrant which can be used in any situation. That objective necessarily runs contra to the specificity required by the Fourth Amendment.... It is undoubtedly true that such a form would be most convenient from an administrative standpoint-but administrative convenience must yield to constitutional values." ⁵ The judge declined, however, to frame his order in such a way as to suppress completely the documents or evidence derived from them as evidence at the defendant's trial. He reasoned that, since LaBelle's initial inspection was made with the consent of the defendant, any evidence derived from it, if otherwise competent, "was not illegally obtained and is therefore admissible." ⁶ Going one step further, he ruled that "since the original inspection apparently furnished probable cause to believe that the documents do constitute evidence of criminal activity, and since that inspection was perfectly legal, there should be nothing to preclude a new seizure of those documents on a properly drafted warrant."

Thus, his order suppressed only "evidence obtained from the said seized documents while they were in the control of the commonwealth, subsequent to their seizure and prior to their return to the defendant," because the warrant authorizing their seizure was overbroad.

While we agree with the judge, we conclude further that merely to affirm the suppression order because the seizure language of the warrant lacked specificity (which was available and could have been supplied) is to create the unwarranted impression that an administrative inspection warrant may be issued for the purpose of seizing evidence to be used in a criminal prosecution. An administrative inspection warrant, granted under a lesser standard of probable cause than is required in traditional criminal searches and seizures, ⁷ cannot be used as a device to seize evidence for use in a criminal prosecution.

We base our conclusion on a simple premise: The purposes for which a warrant is sought should determine the standards under which it is issued. The particularity requirement is but one way to ensure against a greater exercise of power under a warrant "than that ... for which probable cause had been established." In the Matter of Lafayette Academy, Inc., 610 F.2d 1, 5 (1st Cir. 1979). Our primary focus, then, is a comparison of the power granted under the warrant at bar with the probable cause established for its issuance.

In most significant respects, our decision in this case is dictated by the principles underlying our recent decisions in Commonwealth v. Lipomi, 385 Mass. 370, 432 N.E.2d 86 (1982), and Commonwealth v. Accaputo, 380 Mass. 435, Mass.Adv.Sh. (1980) 1009, 404 N.E.2d 1204. As we observed in Lipomi, "the warrant procedure delineated by G.L. c. 94C, § 30, is specifically designed to ensure that inspections authorized by the statute will meet Fourth Amendment standards of reasonableness. The statute explicitly limits both the purpose and the scope of the inspections it authorizes. See G.L. c. 94C, § 30(a) & (f) ...." Commonwealth v. Lipomi, supra at 374, 432 N.E.2d 86. ⁸ As for the purpose of these inspections we said in Commonwealth v. Accaputo, 380 Mass. at ---, supra at 1015, 404 N.E.2d 1204, that "(a)dministrative inspection warrants issued pursuant to G.L. c. 94C, § 30, authorize entry for the limited 'purpose of inspecting, copying and verifying the correctness of records, reports or other documents required to be kept by a registrant on controlled premises and for the seizure of property appropriate to such inspection.' G.L. c. 94C, § 30(a)" (emphasis supplied). ⁹

Consonant with the limited purpose of an administrative inspection is the limited scope of the inspection: "(f) A person executing an administrative inspection warrant may: (1) use reasonable force and means to execute the warrant; (2) inspect and copy records required by this chapter to be kept; (3) inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and except as provided in subsection (h), all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this chapter; and (4) inventory any stock of any controlled substance therein and obtain samples thereof." G.L. c. 94C, § 30 (f), inserted by St.1971, c. 1071, § 1. Commonwealth v. Accaputo, supra. ¹⁰

The issuance of administrative inspection warrants has been limited, then, to situations where, in the performance of a regulatory function under c. 94C, it is necessary to inspect, audit, or sample the premises, equipment, records, or material covered by the statute. Indeed, the entire justification for "(t)he lesser standard of probable cause required to obtain an administrative inspection warrant is inexorably linked to the limited scope of an administrative search." Id. 380 Mass. at ---, at 1014, 404 N.E.2d 1204. See Commonwealth v. Lipomi, supra, 385 Mass. at 373-374, 432 N.E.2d 86. ¹¹

We have previously recognized that "(t)he inspection warrant requirement of § 30 reflects a legislative accommodation of the respective enforcement needs of the State with the privacy rights of individuals with regard to the pervasively regulated pharmaceutical business." Commonwealth v. Lipomi, supra 385 Mass. at 383, 432 N.E.2d 86. The "legislative accommodation" which resulted in the lesser standard of probable cause set forth in § 30(b ), is justified because of the limited scope of the administrative search. Commonwealth v. Accaputo, supra 380 Mass. at ---, at 1014-1015, 404 N.E.2d 1204. Such a limited scope permits inspections of the regulated pharmaceutical business under the authority of warrants which are issued with less than criminal probable cause. Id. 380 Mass. at ---, at 1015, 404 N.E.2d 1204. See Marshall v. Barlow's, Inc., 436 U.S. 307, 320-321, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 537-539, 87 S.Ct. 1727, 1735-36, 18 L.Ed.2d 930 (1967).

This relaxed standard of probable cause applies typically to a request to make a routine compliance inspection of the controlled premises pursuant to a general plan. The standards for conducting such an inspection are satisfied upon a "showing that a specific business has been chosen for (a) ... search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area." Marshall v. Barlow's, Inc., supra 436 U.S. at 321, 98 S.Ct. at 1824 (establishing probable cause for an OSHA search pursuant to 29 U.S.C. § 657(a) (1976)). Such a showing, incorporated into the resulting warrant,...